State Records Committee Decision 2014-09

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JUSTIN CROSBIE, Petitioner, vs.

UTAH DEPARTMENT OF CORRECTIONS, Respondent.

DECISION AND ORDER

Case No. 14-09

By this appeal, Petitioner, Justin Crosby, seeks access to records from Respondent, the Utah Department of Corrections (“Corrections”) through five different records requests pursuant to the Utah Government Records Access and Management Act (“GRAMA”).

FACTS

On January 22, 2014, Mr. Crosbie filed five records requests with Corrections. Request #15633 was for all office and field notes entered by an agent regarding Mr. Crosbie. Request #15643 was for all progress reports, as well as polygraph and PPG results regarding Mr. Crosbie. Request #15644 was for a copy of a warrant request and a parole violation report to the Utah Board of Pardons and Parole involving Mr. Crosbie. Request #15645 was for all government cell phone records, including pictures and e-mails generated by Mr. Crosbie’s parole agent. Request #15646 was for all outgoing and incoming e-mails by Mr. Crosbie’s parole agent from 2011 to the present.

Corrections processed each of Mr. Crosbie’s records requests, granting portions of the requests while denying other portions. For Request #15633, Corrections provided eighteen of twenty pages responsive to his request, but classified the two remaining pages as controlled and/or protected. The records in Request #15643 were found to be both protected and controlled. Request #15644 was denied on the basis that the records were protected records pursuant to Utah Code § 63G-2-305(14). Corrections denied Request #15645 on the basis that no records could be located that were responsive to his request. Corrections found that Request #15646 duplicated a previous records request from Mr. Crosbie, and denied his request pursuant to Utah Code § 63G-2-201(8)(a)(iv).

Mr. Crosbie filed an appeal for all five of his requests, and Mike Haddon, Deputy Director for Corrections, upheld the prior decisions by Corrections. Mr. Jessop now appeals the denial of his requests for records to the State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on May 8, 2014, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305. In response to a records request, a governmental entity is not required to create a record. Utah Code § 63G-2-201(8)(a)(i).

2. Records that are created or maintained for civil, criminal, or administrative purposes, may be classified as a protected record by a governmental entity if the record could reasonably be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes. Utah Code § 63G-2-305(10).

3. Records that if disclosed would reveal recommendations made to the Board of Pardons and Parole by an employee of or contractor for Corrections, the Board of Pardons and Parole, or the Department of Human Services, that are based on the employee’s or contractor’s supervision, diagnosis, or treatment of any person within the board’s jurisdiction may also be classified as a protected record by a governmental entity. Utah Code § 63G-2-305(14).

4. Counsel for Corrections reviewed each of the records requests during the hearing, providing reasoning similar to the reasoning given by Corrections in its denial of Mr. Crosbie’s requests. Counsel also added that since additional documents have been given to Mr. Crosbie after Corrections’ initial denial, all documents responsive to most of his requests have now been provided by Corrections.

5. After having reviewed the arguments submitted by the parties, and hearing oral arguments and testimony, the Committee finds that Corrections is not required to provide additional documents to Mr. Crosbie. The Committee finds that Corrections has fulfilled to the best of their abilities Request #’s 15633, 15645, and 15646, and that no more documents exist that are responsive to Mr. Crosbie’s request. Concerning Request #15643, the Committee finds that Corrections does not have a record responsive to Mr. Crosbie’s request for a PPG report.
The issue of whether the polygraph report was properly classified as a protected record pursuant to Utah Code § 63G-2-305(10), was not reviewed by the Committee based upon a prior Committee decision in Kay v. Dept. of Corrections, State Records Case No. 06-12 (Dec. 12, 2006). See, Utah Code § 63G-2-403(4)(b)(i). The Committee also finds that Request #15644 was properly denied based upon its classification as a protected records pursuant to Utah Code § 63G-2-305(14).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Justin Crosbie is DENIED.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.